Appetizers Today, Main Course on Monday

The Court finished its business today for all but the term’s most high profile cases. Today’s decisions featured multiple heated concurrences and dissents, setting the mood for Monday’s decisions on major federalism, Second Amendment, and church-and-state cases, as well as a very long-awaited patent case that may fundamentally affect that field’s landscape.

Decided today were a trio of cases testing whether “honest services” statutes are unconstitutionally vague. Justice Ginsburg, writing for the Court in the lead case, Skilling v. United States, defined the scope of the criminal statute to bribery and kickback schemes rather than simply invalidate it. “Skilling swims against our case law’s current,” she wrote, “which requires us, if we can, to construe, not condemn, Congress’ enactments.”

Justice Scalia, writing for Justices Kennedy and Thomas, dissented on this point, preferring instead to strike down the law instead of “strik[ing] a pose of judicial humility.” Mocking the majority, Scalia finally introduced virtual shouting into his opinions, making explicit in all-caps the tone in which we’ve long implicitly understood his dissents were to be delivered:

Since the honest-services doctrine “had its genesis” in bribery prosecutions, and since several cases and counsel for Skilling referred to bribery and kickback schemes as “core” or “paradigm” or “typical” examples, or “[t]he most obvious form,” of honest-services fraud, ante, at 43–44 (internal quotation marks omitted), and since two cases and counsel for the Government say that they formed the “vast major­ity,” or “most” or at least “[t]he bulk” of honest-services cases, ante, at 43–44 (internal quotation marks omitted), THEREFORE it must be the case that they are all Congress meant by its reference to the honest-services doctrine.

Ginsburg’s opinion additionally determined that the notoriety of Jeffrey Skilling, the former Enron CEO, did not deprive him of a fair trial. On this point, Justice Sotomayor dissented, joined by Justices Stevens and Breyer.

The Court also decided Doe v. Reed today, holding that disclosure requirements for referendum petitions do not generally violate the First Amendment. Chief Justice Roberts, writing for an eight-justice majority, refused to strike down Washington State’s Public Records Act on its face, but left open the question of whether the plaintiffs–men and women who signed a petition supporting a ballot referendum to overturn the State’s recognition of benefits for same-sex domestic partnerships–would prevail by challenging the PRA’s constitutionality as specifically applied to their own experiences.

Justice Alito, in a concurrence, emphasized what he saw as the plaintiffs’ “strong argument” in an as-applied challenge, echoing his United States v. Stevens dissent. As evidence, Alito found that “[t]he widespread harassment and intimidation suffered by supporters of California’s Proposition 8 provides strong support for an as-applied exemption in the present case”–an argument that went down in flames with most of the other justices, most notably Justice Scalia, at oral argument.

Justice Sotomayor, joined by Justices Stevens and Ginsburg, registered a concurrence on the other side of the ledger from Alito:

courts presented with an as-applied challenge to a regulation authorizing the disclosure of referendum petitions should be deeply skeptical of any assertion that the Constitution, which embraces political transparency, compels States to conceal the identity of persons who seek to participate in lawmaking through a state-created referendum process.

Justice Stevens, writing for himself and Justice Breyer, took a similar stance in opposition to Alito’s prediction:

For an as-applied chal- lenge to a law such as the PRA to succeed, there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures. Moreover, the character of the law challenged in a referendum does not, in itself, affect the analysis. Debates about tax policy and regula- tion of private property can become just as heated as debates about domestic partnerships. And as a general matter, it is very difficult to show that by later disclosing the names of petition signatories, individuals will be less willing to sign petitions. Just as we have in the past, I would demand strong evidence before concluding that an indirect and speculative chain of events imposes a sub-stantial burden on speech.

Concurring in the judgment, Justice Scalia continued to press for “political courage,” as he had at oral argument, by rejecting the very notion that “the First Amendment accords a right to anonymity in the performance of an act with governmental effect.” To prove his point, he noted Kentucky’s and Virginia’s early history of viva voce voting, among other examples from American history. In conclusion, he crescendoes:

Plaintiffs raise concerns that the disclosure of petition signatures may lead to threats and intimidation. Of course nothing prevents the people of Washington from keeping petition signatures secret to avoid that—just as nothing prevented the States from moving to the secret ballot. But there is no constitutional basis for this Court to impose that course upon the States—or to insist (as today’s opinion does) that it can only be avoided by the demonstration of a “sufficiently important governmental interest,” ante, at 7 (internal quotation marks omitted). And it may even be a bad idea to keep petition signatures secret. There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self- governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, cam- paigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

Sotomayor overall seems to be the most consistent “liberal” voice of late next to Stevens, even out Stevens-ing him in the material support cases. She also has written and joined a lot of separate opinions of late.